Supreme Court Discussion In Aereo: At Least The Justices Recognize The Harm They Might Do

from the but-will-they-still-do-it? dept

The oral arguments in the Aereo case happened this morning before the Supreme Court and you can read the transcript here (it's still a travesty that there is no live broadcasting (or any video recording at all) of the proceedings, but that's a different argument for a different day). As with any such case, this discussion needs to be prefaced with the fact that reading the tea leaves from what Justices say during oral arguments is a unlikely to yield much that is useful. You'll often see large segments of the arguments discuss issues that later don't appear at all in the final ruling. In some cases, Justices are just testing out certain theories or pushing the lawyers to see how they respond. Oral arguments do matter, but not nearly as much as the underlying briefs. We still have a few months (probably) to find out how the Court will rule, but we can at least comment on some of today's discussion.

The important thing to get from the discussion was that the Justices, for the most part, seem to actually recognize that with copyright law the way it is today, finding -- as the broadcasters would like -- that Aereo is engaged in a public performance -- may have long term consequences for all sorts of other industries. It starts off early on, with Justice Sotomayor jumping in with a very different question, concerning whether or not Aereo is a cable company, which would include a different set of issues (in fact, this was exactly the strategy that Aereo competitor/predecessor ivi sought to take -- and ran into trouble). She points out that there may be value in avoiding the whole public performance question all together, since it could get messy:

If we take public performance, maybe we run
into what Professor Nimmer saw as a problem. Why isn't
what used to be called a phonograph record store that
sells phonograph records to 10,000 customers a public
performance? It seems to fall within that definition.
But if it is, there's no -- no first sale doctrine and
it's a big problem. So we could avoid that problem.

Meanwhile, Justice Breyer is clearly concerned about the possible impact on the cloud, again in discussing the possibility that the Court could avoid the issue by calling Aereo a cable company:

And what you've read in their briefs is
they, in their supporting amici, have thrown up a series
of serious problems not involving them, like the cloud,
which the government tells us to ignore, and many
others, which make me nervous about taking your
preferred group.

Which bounces back to Sotomayor, who notes that the public performance definition the broadcasters want "sweeps up" an awful lot of other businesses where it doesn't make sense:

I mean, Justice Breyer has already asked you -- said he's
troubled about the phonograph store, and -- and the
Dropbox and the iCloud. I'm also worried about how to
define or -- public performance or the performance of a
work publicly, which I guess is the better way to do it,
according to you. How do I define that so that someone
who sells coaxial cable to a resident of a building is
not swept up as a participant in this? Or someone
who -- the sort of passive storage advisors that -- this
is really hard for me.

Justice Kagan, also, quickly gets to the heart of the matter -- the point that we've been raising since the beginning with Aereo -- that this is all about the length of the cable. If someone were to do this at home -- with the same exact electronic setup, it's clearly legal. But the broadcasters want to make Aereo illegal, because the length of the cable between the "DVR" component and the "TV" component is much longer.

Suppose a company just gave the
antenna and a hard drive, that's what they sold to the
user, and the user was able to use the antenna and the
hard drive in her own house or apartment in order to get
all these broadcast programs. What would the -- would
that be a performance?

When the broadcaster's lawyer pushes back, Kagan points out that it does seem odd that where the hardware sits determines if there's a public performance or not.

But then it really does
depend on, like, where the -- where the hardware is. In
other words, if -- if Aereo has the hardware in its
warehouse as opposed to Aereo selling the hardware to
the particular end user, that is going to make all the
difference in the world as to whether we have a public
performance or not a public performance.

Chief Justice Roberts highlighted the same issue:

Why isn't -- and I don't want to stretch it too -- but why isn't it like a
public garage in your own garage? I mean, you know, if
you -- you can park your car in your own garage or you
can park it in a public garage. You can go to Radio
Shack and buy an antenna and a DVR or you can rent those
facilities somewhere else from Aereo. They've --
they've got an antenna. They'll let you use it when you
need it and they can, you know, record the stuff as well
and let you pick it up when you need it

There's then a discussion trying to see if there's a way to distinguish Aereo from the Cablevision decision (in the 2nd Circuit appeals court) saying that Cablevision's remote DVR was legal. The lawyer for the broadcaster says that he thinks the Cablevision decision was decided incorrectly, but the difference is that Cablevision already has a license. This is misleading, because the license in Cablevision was unrelated to the issue of the DVR feature. Furthermore, over-the-air broadcasts (which is what Aereo offers) have an implied license already associated with them (you don't have to pay to watch over-the-air TV for that very reason). So the distinction here is meaningless. Justice Breyer says that, even if that's true, there's still a real risk to cloud computing.

But then the problem is in the words that do
that, because we have to write words, are we somehow
catching other things that really will change life and
shouldn't, such as the cloud? And you said, well, as
the government says, don't worry, because that isn't a
public performance. And then I read the definition and
I don't see how to get out of it.

When asked similar questions, the Deputy Solicitor General, Malcolm Stewart, (again, bizarrely, the US is intervening on behalf of Hollywood for no clear reason), appears to admit that there's no clear line, and that things should be decided on something of a case by case basis:

I think you would have to --
you would have to know both the details of the service
and you would have to be making a harder call there
about how to draw the line, because I don't pretend that
there is a bright line between providing a service and
providing access to equipment. If you look, for
instance, at the extremes of a person putting a rooftop
antenna at his own home, everybody agrees that the
rooftop antenna manufacturer is not performing at all
and the individual is engaged in a solely private
performance.

The other extreme is the cable company, one
big antenna, makes transmissions to a lot of people;
Congress clearly intended to define that as a private
performance. Somewhere in the -- you could come up with
lots of hypotheticals that look more or less like one of
the other extremes, they are somewhere in the middle.
It's an authentically hard call as to where to draw the
line. So I don't have a good answer for you.

But that seems rather important, given that this case is asking for that line to be drawn. And the Justices were clearly struggling with that point. Justice Breyer responded:

How do we get out of
the example? I mean, how do we get out -- what words do
I write to get out of this, throwing into this clause a
music store that distributes via Federal Express, a
device, or the U.S. Postal Service or even someone over
the counter, distributes to 10,000 people a copy of a
record which they then will take and play it? They
have, to the same degree, transmitted something that
will electronically make a performance of the music. So
are they when they sell the record violating the display
clause?

This isn't to say that the Justices are in agreement with Aereo. They expressed plenty of skepticism about the whole setup, arguing repeatedly that the whole thing seems to have been set up solely to fit within the law, using a technological setup that makes no sense. Aereo, in response, sought to argue that there were technical reasons for its setup, but frankly, that's bogus. The technological setup is insane, but the insanity is not because Aereo is trying to "get around" the law, but the exact opposite. Because it's trying to stay within the law. If the setup of copyright law itself wasn't so insane, there would be much better ways to do what Aereo is doing. But thanks to a bunch of interlocking "rights" buried within copyright law, and caselaw that is basically duct-taped onto the statute every time a new technology comes around, actually innovative requires the Rube Goldbergian-approach that Aereo took just to stay within the law. It's ridiculous that that is seen as a suggestion of illegality...

When the broadcasters lawyer comes back to rebut Aereo's lawyer, he argues that if Aereo loses, it can just get a license or go out of business. But Justice Breyer notes that it's really not that simple:

Once you take them out of
the compulsory licensing system, they're going to have
to find copyright owners, who owns James Agee's
pictures? Who owns something that was written by --
like a French silent film in 1915? I mean, the problem
is that they might want to have perfectly good things
that people want to watch and they can't find out how to
get permission. That is a problem that worries me and
it worries me again once you kick them out of the other
systems

In the end, I think the Justices were rightly worried about how any ruling might impact the cloud. While there was some skepticism about Aereo's setup, Aereo's lawyer did a good job highlighting why those were wrong. Still -- and again, reading Supreme Court tea leaves is nearly impossible -- if I were going to guess, I'd guess that the Supreme Court will seek some sort of "narrow" ruling that tries to say that Aereo should get a license (possibly just throwing the issue back to the lower courts on the details), while doing everything it can to avoid a ruling that throws the entirety of cloud computing under the bus.

Re: Serious Question

.. arguing repeatedly that the whole thing seems to have been set up solely to fit within the law..

Isn't that the point of, well, following the law?

No.

… can I get a ticket for "acting solely to fit within the law?"

Yes.

More specifically, you can be pulled over, ordered out of your car, then forced to wait at the side of the road until a drug dog arrives. Then, even if the dog doesn't find any drugs, the cops can still seize all your cash. Driving just under the speed limit is very suspicious. That's just how it is.

Re: Re: Re: Re: Serious Question

That's pretty much true by practice. At least in my area, the courts make it easy to pay tickets online or mail in the payment, but if you want to fight the ticket, you have to lose half a day of work waiting in line at the courthouse just to say you want a trial, then they make you wait months, then you lose another half a day of work at the courthouse going to trial, then the judge takes the cop's word over yours and you lose even more money paying the ticket. The system is built to presume that you're either guilty or you're too busy living your life to fight a ticket or too poor to afford a traffic lawyer to help you fight it.

Re: Re: Re: Re: Serious Question

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Ding. I got pulled over the other day. I was going about 68 which was slower than all of the traffic to the left of me. I was in the #2 lane with 3 other lanes to my left. Cop was in #1 lane. He came up behind me and then moved over to chase after another car that clearly was going faster than I was. He passed me and then about 1 car length in front of me he slammed on his brakes and pulled me over. I had a registration issue in the computer. Tag was current though so it wasnt that. The key point is that out of all the cars passing me, he checked my cars license plate. The person going closest to the speed limit out of all of the traffic. If he had gone after the obvious lawbreakers he would have gone right by me. But I, the one going closest to the speed limit, is the car he checked up on only to find a registration issue. A fix it ticket taken care of the next day.

Re: Serious Question

So if my city makes the speed limit on the freeway 75 miles per hour, and I travel 74 miles per hour, can I get a ticket for "acting solely to fit within the law?"

Well, if you used your "cruse control" to keep your car at 74MPH, then yes, you were actively avoiding breaking the law (how dare you). Using a lawful technological method to keep from breaking the law, thereby depriving the city/county/state of their lawfully entitled fines for your speeding (which you didn't do in the first place) is unfair, unjust and unsportsmanlike (glove slap across the face).

Every company that incorporates a cruse control feature in their product will now be required to purchase licenses from each city/county/state to make up the lost revenue from each and every vehicle that can now avoid paying speeding fines through perfectly legal methods.

It's just like a gas pedal, which you let pressure off off or having a brake to slow down, when you see a lower speed limit sign. Those will need to fall under the same required licenses as a vehicle with cruse control.

No one is allowed to avoid the law by following the law, and that is what those against Aereo want the Supreme Court to believe.

Re: Serious Question

"So if my city makes the speed limit on the freeway 75 miles per hour, and I travel 74 miles per hour, can I get a ticket for "acting solely to fit within the law?"

Sigh."

No, of course not, don't be naive. It simply means you are attempting to skirt the rightful fees associated with issuing you a speeding ticket. By staying EXACTLY within the letter of the law, you are de facto trying to cheat the system.

Re:

The biggest problem is that the justices cannot be trusted to always do the right thing, or even understand exactly what they are doing... there have been a LOT of boneheaded decisions handed down by the supreme court over the years, and I see no reason why this cant be another.

During the discussion about "the cloud" I would seriously like to stand up and ask the justices to define "the cloud". I would not be surprised at all if at least one of them replies "those white things in the skies"

About time we see the first nails being driven into the coffins of the three major networks (ABC,NBC,CBS). Their day has come and gone. Sad to see them scratching and clawing for viewers, while at the same time trying to deny a select group access to content.As they are finally beginning to circle the drain, while bleeding capital and viewers, things will get uglier. As an advertiser I am putting my ad revenues where they will get me the most exposure, bang for the buck, and it ain't with these dinosaurs. I hope their parent companies see this for what it is, or they will take a bath too.

Re: Re:

Re:

I can't justify paying for cable, and I can't get the three major networks over the air. If they were available over the internet I'd probably watch them occasionally, and that includes their commercials. But not as three different paid subscriptions using three different bits of software, plus separate subscriptions and software for other networks.

A system like Aereo isn't the end of the major networks; it's their salvation. The question is whether they'll recognize it in time.

Fairly good questions

I, for one, think the court asked fairly good and well reasoned questions in this case.

The Legality of AERO is based on all the laws that say how one should act in exactly the situation its in right now. The oral arguments proved this to be the case and only pointed out that the computer system behind the process was designed specifically to be legal.

The courts point that there is no line to cross in terms of renting your own Antenna that if established won't have unintended consequences is quite clear.

On the other hand, Netflix will be able to take this ruling and apply it to DVD's so that they can rent movies from physical disks instead of paying licenses. Mike pointed out in the past that this was attempted and settled long ago by a smaller player. But now you will have a rule on the books that says the cable does not matter.

The alternative could be very bad, If the court says that doing stuff "On the Internet" that was not intended by the rights holder is enough then almost any provider that stores data for a 3rd party will now be required to install DCMA tools like youtube to purge files.

This ruling, if done badly, will send the US into the dark ages and let some other country take over on innovation.

perhaps things would have been easier if congress weren't so easily swayed by the industries by 'funding' and 'out of politics jobs' and if the courts weren't just as easily swayed by government taking campaign funding from the entertainment industries. oh to have some honesty for a change!!

Of course, Aereo could have avoided all of this by having first worked with willing licensors (CC advocates come to mind) to provide subscriber content. Then again, who wants to build upon a business model that is so limited since it is doubtless that paid subscriptions could likely be counted on 10 fingers or so? Nope...need the "good stuff" from the "big guys" because their content sells.

Re: Re: Re:

That's absurd. The entertainment industry litigates everything they don't like by default. When lawsuits fail, they promptly go crying to congress to buy changes to the law to achieve the outcome the court didn't give them.

History is replete with example after example after example of just how litigious the entertainment industry is. In fact, we're in this exact situation right now precisely because of this very behavior.

So, don't try to pretend that a courtroom would not have been involved in this situation because history is not on your side in this.

Re: Re: Re:

You might have missed it, but barring I believe one case(at most, it might be none, memory's a little spotty on it), Aereo has been found legal every single time it's found itself behind the table at a court-room, so it's fair to say that the litigation didn't ever get off the ground.

The only reason it's reached this point is that the companies trying to crush the new competition and/or set precedent they could use themselves have been willing to throw obscene amounts of money into case after case after case, likely attempting to bankrupt Aereo if they can't get it found illegal, similar to what they've done in the past with other companies/services.

Re: Re: Re:

Litigation does not need things like "facts" or "truth" to get off the ground. It needs money. moola. Fat stacks of greenbacks and all the circular-arguing, simplicity-eroding legal help you can buy.

These cases have again and again been examples of just dumping lawyers on your enemies in an attempt to choke them and then find a judge who isn't inclined to understand all this newfangled internet tomfoolery to rule on the amazing success.Broadcasters (and their law firms) will spend anything that they have to if it means they get to claim victory, stomp out someone doing something new And re-align the status quo to a situation of receiving all money forever.

Re: Re: Re:

"If you are acting legally, you must be trying to avoid punishment for acting illegally. Therefore you must be acting illegally and must be punished. Don't complain! You wouldn't be punished if you weren't acting illegally, right?"

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Any relationship between this case and Betamax is tenuous at best, and completely irrelevant in the context of the questions before the court.

Amazingly, almost no one of any knowledge on the issue, agrees with you. Note that the Betamax ruling was raised multiple times during the hearing yesterday, as people pointed out that that ruling showed how the basic functioning of time shifting over-the-air content is perfectly legal, raising questions as to how Aereo's DVR could not be legal.

Yes, the question before the court is about the public v. private performance, but the Betamax ruling does, in fact, play into that, which is why it was mentioned during the oral arguments.

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Actually, Betamax is only relevant in regards to the record and playback functions, but not to the underlying basics of the case, ones of conversion and retransmission.

Clearly Betamax would be the case that Aereo would try to cite, because it's the one thing that is really on their side. But once you get all the smoke out of the way and technical work around to dodge around the law, they are left with a system that does more than an antenna, a service you pay monthly for, and only has value when sending the plaintiff's programming on it. Betamax is at best only marginally relevant towards the core disagreement in the case.

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The Sony references were little more than segues into largely irrelevant subject matter doing virtually nothing to illuminate the legal issues under consideration. Aereo's attempt to somehow equate its system and its use with Sony's Betamax recorder is inapposite, and the many references to fair use merely instill confusion because this is not a fair use case (just like Sony was not a fair use case as that was not a part of the Court's holding, which was limited to secondary liability of a piece of hardware that others could use to engage in infringing acts).

I can't see the Supreme Court going against the wishes of the Federal Government. The US Solicitor General's office is already personally intervening on Hollywood's behalf.

We've already seen the current White House administration order tactical strikes on Kim Dotcom's house.

The Supreme Court gets their authority of the Federal Government. I fail to see how it's in their interest to rule against the source of their authority.

The only way Aereo might win this case, is if Google or some other cloud giant realizes this might hurt their business model. Then lobbies the White House to rule in Aereo's favor, or lobbies for a narrow ruling as Mike has suggested.

I think Mike is correct, and this case will end in a narrow ruling against Aereo.

Re:

I can't see the Supreme Court going against the wishes of the Federal Government. The US Solicitor General's office is already personally intervening on Hollywood's behalf.

The Supreme Court gives the office of the Solicitor General a good deal of deference, but it is hardly a foregone conclusion that the justices will take its side. The SG's participation is not nearly as unusual as Mike makes it seem. The SG's office submits amicus briefs on many cases, including some to which the govt is not a party but which relate to federal agencies (like the Copyright and Patent Office), often at the Court's explicit request. Participation in oral argument where the US is not a party is more unusual, but it happens a few times per year; "bizarre" is overstating it. (Also, the Deputy Solicitor General argued the case, not the Solicitor General personally.)

The Supreme Court gets their authority of the Federal Government. I fail to see how it's in their interest to rule against the source of their authority.

The Supreme Court gets their authority from Article III of the Constitution, not from the co-equal executive branch. The Supreme Court can and does rule against the executive; the SG wins something like 2/3 of the time.

The only way Aereo might win this case, is if Google or some other cloud giant realizes this might hurt their business model. Then lobbies the White House to rule in Aereo's favor, or lobbies for a narrow ruling as Mike has suggested.

First of all, although Google has not filed a brief in this case, I'm sure they are aware of it. Second, if Google wanted to file in the case, they've already missed the deadline. However, the EFF filed a brief, as did Mozilla, jointly with the Computer & Communications Industry Association, so the cloud computing issue has been raised. Third, the White House doesn't rule on the case; the Supreme Court does. Fourth, the Solicitor General, DID ask the Court to rule narrowly so as not to affect cloud computing, though as pointed out several of them seem to not see a reasonable way to do so.

Occam

[Paraphrasing Jack Valenti in a debate with Lawrence Lessig]:

"Of course you have to be in support of copyright [he may not have strictly said "copyright" - I am recalling from fuzzy memory, I apologise - but in any case these next words definitely came from his mouth and his side of the house, and they pissed me off the most during that debate:] of course you have to... it's an application of Occam's Razor!"

Tell me honestly... and we all know the answer... who are the ones multiplying unnecessary constants, here? Supporters of copyright or opponents of it?

Supporters, with their persistence in papering up every single one of the thousands of cracks of the dam where the water gets through nonetheless, with their insisting that every papering has some validity to it, regardless of how many times the water gets through without any fear of deterrence or law enforcement, and regardless of the obvious flooding that happens right in front of our faces?

Or those who simply say that you need a new dam? And that if copyright law is broken more times than it is followed (never mind enforced), the real Occam's Razor solution is to step back and question the validity of the core philosophy itself?

Being a "reductionist" is not always a bad thing, and the word gets thrown around as a negative too often. Every skeptical thinker should aim to reduce as many unnecessary constants as possible, ergo "reduce" equations to be as simple as possible as a reductionist would... "but no simpler", as Einstein quite rightly cautions.

Here, I do not think I am being too immodest when I say that the fact that Aereo have done above all else demonstrate how many constants copyright law tries to multiply, in a futile attempt to paper over all cracks of a faulty dam that erodes away overtime, and how you can still get around the law regardless of the constants you multiply, never mind how whenever the law does work it still doesn't protect artists never mind derivative artists, and how futile the law really is at stopping 1s and 0s from exponentially multiplying and traveling at light-speed worldwide... some of those 1s and 0s LEGAL while the exact same combination of them (or ENCRYPTED combination of them) not so legal, Christ..., all of it shows that we on the opposition deserve credit for challenging the claim of "it's more complicated than that...".

The judges of the Supreme Court of the United States, the highest court of the most powerful nation on the planet, are bickering over tiny antennas, which can be easily assembled in the average layman's garage, like quantum physics. THAT'S how many constants the copyright believers multiply.

Now tell me. Where are the unnecessary constants when you substitute copyright with: assurance contracts (e.g. crowdfudning), reasonable trademark protection (fashion industry booms), and regulation by labeling what copies are official and which are bootlegs (that utilises the public attitude that favours funding artists without the need for any kind of law)? :

- Artist sets up a paywall and asks whatever price he wants, and protects his property. - Derivative artists are not discriminated against. - No "prior restraint" considerations that copyright has to take into account with respect to free expression. - No language barriers as everyone is free to translate without legal repercussions, ergo more global dialectic. - Libel is treated separately and does not confuse things (hint hint, Cindy Lee Garcia...) - Plagiarism is treated on par with libel, instead of mixed in with copyright. - Trade secrets get better strength. - No war-on-drugs-like piracy monopolies (e.g. MegaUpload) or corporate corruption and their respective pirate profits (e.g. Google): both would have to pay the crowdfunding paywall to survive in the market. - China feels the pressure as their piracy monopoly begins to crumble (or at least is greatly challenged). - Artist does not have to waste his time or money on lawyers chasing around global pirates, when withholding the actual existence of the content itself pending those pirates paying will suffice (if the mountain won't come to Mohammad, Mohammad must come to the mountain - again, Occam's Razor is on MY side). - Pirates can be taxed (and taxes given to artists to boot, if need be).

Big whopper of a lie from Clement

MR. CLEMENT: The consequences really gets back to the Chief Justice's question, which is, if they actually provide something that is a net benefit technologically, there's no reason people won't license them content.

That's completely false. Whether there is a technological benefit has rarely (never?) entered into broadcasters decisions about whether to license something. What matters more to them is how this technology affects their monopoly position.

I surely hope that the U.S. Supreme Court does not find in favor of Aereo. That could be the absolute worst decision ever. While it's unfortunate that no online streaming is available from cable companies, a fact that is wrong considering that many cable companies like Comcast make programming online available as long as you're a paid subscriber.

The fact is, that this has nothing to do with public performance and everything to do with Aereo acting more like cable company and their desire to charge their paid subscribers without Aereo compensating the cable companies for that content.

If Aereo wins, it would be a major defeat for consumers who might rely on that programming if networks take their content and switch to cable networks like TNT and TBS. The consumers would lose.

CBS, NBC, ABC, Fox ... every last one of them could switch to cable broadcasting and just abandon the public spectrums. Many of us already have cable so it wouldn't hurt us. The people it would hurt are the poor and low income who couldn't afford cable and it would hurt companies like Aereo who are making money from content that rightfully belongs to the cable companies.

Someone forgot to tell Aereo that you don't get something for nothing and nothing in this country is free. I wouldn't have a problem with Aereo if they were giving away their services for free. But, this is nothing more than Aereo taking your car out of your driveway, using it for free, and not compensating you for that.

Re:

"Someone forgot to tell Aereo that you don't get something for nothing and nothing in this country is free. I wouldn't have a problem with Aereo if they were giving away their services for free. But, this is nothing more than Aereo taking your car out of your driveway, using it for free, and not compensating you for that."

So... nothing is free, so Aereo should offer their services for free? You speak as if Aereo has no costs, but the mass equipment they have to purchase (which is stupid, but it is what it takes to comply with the law), connection costs, personnel costs, and electrical costs all come into play.

Your analogy is flawed and should be unfix-able, but what the hell. If you must, it is like someone taking your car, only when you have zero interest in wanting it, out of your driveway for a spin, and returning it with changed oil, a full tank of gas, with the tires rotated and no wear or tear added to it from when they took it.

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Gee, I wonder if that has anything to do with the fact that they're dealing with free, over the air content that was never going to be paid for by the recipient? /s

CBS, NBC, ABC, Fox ... every last one of them could switch to cable broadcasting and just abandon the public spectrums.

Oh noes, what ever could the public do with all that opened up spectrum to play around with...

Also, if they want to blow their foots off like that, let them, after all, what do you imagine the people paying them for advertising would do if they suddenly abandoned such a huge number of potential viewers out of nothing more than a childish urge to 'take their ball and go home'?

But, this is nothing more than Aereo taking your car out of your driveway, using it for free, and not compensating you for that.

Not even close. If we're going to compare Aereo to something, compare it to someone gathering up copies of a free newspaper, and distributing it to people who would otherwise not have been able to get it. Yes they might charge for delivering those copies, but they're charging for the time and money it took to get those copies to the customers, not for the newspapers themselves.

Re:

"But, this is nothing more than Aereo taking your car out of your driveway, using it for free, and not compensating you for that"

Sorry Friend, I call false analogy on you.

Being a Native (indigenous) American. I see this through the Eyes of my Ancestors, this is a Great deal like smoke signals, Folks can see them for miles if your butte is high enough... Aero captures smoke signals, and passes them on...

Re:

So I owe you money if I rent antennas? They are passing along, unchanged, broadcast tv. The airwaves are a public resource. Broadcasters benefit from using this resource. If they don't want Aero to receive their signal, they shouldn't transmit it to them.

Broadcasting tv signals for the collective good of the country is what broadcasters agree to do in return for permission to use the public recourse.

I haven't seen this expressed, but keep in mind, they only allow subscribers in areas where they could otherwise receive the exact same tv signal. I cannot subscribe to their NYC feed with a Chicago billing address. They do not provide anything I couldn't do myself.

Maybe we're all looking at this the wrong way...

The courts are having a difficult time trying to draw a line between Cablevision and cable companies to find out which side of the line Aereo must be on. Maybe this dividing line does not belong anywhere between them at all. If Aereo wins this, cable would have no reason NOT to use the same model. Why? Because being charged fees to give free, over the air broadcasts to the people who could get them for free anyway just doesn't make much sense. It's convoluted, but it may be because the reasonable methods were already unfairly struck down.

Re: Maybe we're all looking at this the wrong way...

Questionable Arguments

The whole premise of this suit is bogus. Aereo is NOT doing what it says. In order to record the various channel signals, those signals must first be received, detected, and turned into composite video for the recorder to store.

This is NOT the same as having an antenna in New York, and a 20 mile long cable to your home TV receiver, but is, in fact, nearly identical to what the average cable provider does. The difference being that the cable provider uses his own copper or fiber cable to carry the signals, whereas Aereo uses the public internet to carry them. The end result is the same.

This is basically placing a TV receiver for each channel in New York and running a 20 mile long VGA cable to your house onto which you attach a monitor. A switch is provided in New York to select the desired channel with the resulting video transmitted over the internet as a stream. There is no fundamental difference between Aereo and Netflix or your local cable provider..

Re: Questionable Arguments

Let me add one more point: the idea that each subscriber has his own antenna, and that the antenna is the sole source of the signal he receives is pure smoke and mirrors.

The internet stream that the subscriber uses IS NOT a raw RF signal as transmitted by the network's station. Such signals cannot be carried by the internet - no where near enough bandwidth for that. No, what the internet carries is the same sort of video/audio signal stream sent out by all content providers..

Re: Re: Questionable Arguments

Let me add one more point: the idea that each subscriber has his own antenna, and that the antenna is the sole source of the signal he receives is pure smoke and mirrors.

The issue is not whether the antenna is the sole source of the signal (though it is), the issue is whether the signal from the antenna ends up going to anybody other than the antenna's owner (renter, actually).

Re: Questionable Arguments

The whole premise of this suit is bogus. Aereo is NOT doing what it says. In order to record the various channel signals, those signals must first be received, detected, and turned into composite video for the recorder to store.

Which is exactly what a VCR/DVR (possibly even rented from your local Rent-To-Own shop) has done for years and they are legal. The premise is the same, only the length of the cord is different.

This is NOT the same as having an antenna in New York, and a 20 mile long cable to your home TV receiver, but is, in fact, nearly identical to what the average cable provider does. The difference being that the cable provider uses his own copper or fiber cable to carry the signals, whereas Aereo uses the public internet to carry them. The end result is the same.

No. The difference is the insane lengths that Aereo went to keep the antenna you are using seperate from other people so that it is legally considered a private performance instead of public performance. That's what this whole issue is about.

This is basically placing a TV receiver for each channel in New York and running a 20 mile long VGA cable to your house onto which you attach a monitor. A switch is provided in New York to select the desired channel with the resulting video transmitted over the internet as a stream. There is no fundamental difference between Aereo and Netflix or your local cable provider.

Wrong again. Lots of differences. In fact, so many differences that this discussion has now reached the highest court in the land. So, yeah, not really as black & white as you are portraying there.

Re: Re: Questionable Arguments

This issue got to the Supreme Court because very few of the members of the Bar understand the technology inherent in the internet or television. They are thus easily confused by it, as you seem to be.

In order for video to be recorded or transmitted over the internet, it must first be received and decoded by some means. Each customer is said to have his own antenna, to which is attached a DVR. It is necessary for the DVR to contain a complete television tuner and receiver, capable of remote channel switching, in addition to video recording means. Data from the receiver is stored in the "cloud" - meaning a humungous disk drive - as streaming video for later retrieval by the customer. In what way, exactly, does this differ from that provided by the average cable company, or by any of several streaming video sources? I submit to you that it doesn't.

Re: Re: Re: Questionable Arguments

This issue got to the Supreme Court because very few of the members of the Bar understand the technology inherent in the internet or television. They are thus easily confused by it, as you seem to be.

Now you are being silly. Ever heard of expert witness testimony?

In order for video to be recorded or transmitted over the internet, it must first be received and decoded by some means. Each customer is said to have his own antenna, to which is attached a DVR. It is necessary for the DVR to contain a complete television tuner and receiver, capable of remote channel switching, in addition to video recording means. Data from the receiver is stored in the "cloud" - meaning a humungous disk drive - as streaming video for later retrieval by the customer. In what way, exactly, does this differ from that provided by the average cable company, or by any of several streaming video sources? I submit to you that it doesn't.

You have just described a Roku box setup. Those are legal because it's sending a single stream across the internet to a single end user. In other words, a private performance. Cable companies broadcast one signal to many customers or a public performance. Big difference. It's not just about the technology, it's about the legal aspects too, which you are ignoring.

Re: Re: Re: Questionable Arguments

"In what way, exactly, does this differ from that provided by the average cable company, or by any of several streaming video sources? I submit to you that it doesn't."

So, you claim that because the video is sent over the internet it makes it a streaming service? Well lets look at this. I assume you consider the TIVO dvr I have at home to be legal, and not a public performance, requiring a license.Now suppose I make one small change to that TIVO, instead of using the internal hard drive, I go to a say drop box, or icloud, or some other cloud provider, and I sign up for 1 petabyte of diskspace (yes I watch a lot of video). Now, using my own hardware and antenna, I decode the RF into video, convert it to a file format, and store it in the cloud. Later on, I watch that recording. You would now claim that I am illegally "Streaming" video content, without a license? The only difference between this hypothetical setup and Aereo is that I am not renting the antenna and decoder, I own the dvr. If your view were to hold sway, remote disk storage would be impractical.

I can just see Microsoft complaining that Carbonite is pirating copies of windows, because people backup the hard drives, then restore them later.

Re: Questionable Arguments

"This is basically placing a TV receiver for each channel in New York and running a 20 mile long VGA cable to your house onto which you attach a monitor."

Which doesn't change or weaken the argument one bit.

"There is no fundamental difference between Aereo and Netflix or your local cable provider."

There's a pretty big difference. Netflix or your local cable provider are broadcasting. Aereo is not. Netflix and cable don't just retransmit a freely obtainable signal from a single antenna to a single subscriber. Aereo is.

The questions asked suggest that the justices understand most of the issues.

You might argue that they don't understand "the cloud", but you won't get much agreement among even cloud-y vendors about what "the cloud" is either. When you get up close (especially when you get up close) it's all fog.

Some of the questions did border on suggesting they must be guilty of something, since they went to so much effort to "get around" the law. But I don't believe that the justices are actually thinking that.

I tend to think that they are thinking "They have gone to absurd lengths to fit within (between) the current law. You want us to make what Aereo is doing illegal. But the big hammer you are asking for would make a large set of well-established activities illegal. What words would you use to differentiate this situation from others? If you can't put down in words how Aereo violated the law, but record stores don't, how can we possibly decide it's wrong?"

I can't see the justices granting cert in this case, just to issue a highly conditional opinion. "It depends..." is the worst possible outcome for progress -- something they seem sensitive to.

Re:

There's no great mystery in the "cloud". It's simply a huge server farm, or several, that stores data. The cloud concept simply means that the data stored is available to a customer via any device that can log into the cloud's website successfully. It also means the customer doesn't have to have a lot of local storage, that they can offload that to a service.

As for the lawyers involved, including judges, I submit to you that, unless they possess at least a BSEE with a minor in computer science and specialization in TCP/IP networking and further specialization in television/video technology, that they do not understand the totality of these issues. That's part of the reason Aereo has gotten as far as it has. Everyone has been snowed by the marketing BS.

Look, television, now, is entirely digital. That means the tv signal you watch, courtesy of your cable service or over the air, is sent to you as digital data streams. Those streams can be captured and stored, AS DATA, which is what a DVR does. That's what the local cable provider does to translate local on-air TV to a cable channel.

The problem here is that the commercial networks have managed to con the cable companies into paying for the privilege of taking a freely available on-air signal and reformatting it into a cable channel. I disagree with this, by the way. Aereo has done essentially the same thing. I would love to see a schematic of one of their service centers.

I agree that the Justices have a difficult call ahead of them. Yes, some of them seem to understand some of the issues, but few of them understand the engineering involved. There needs to be an honest(good luck!), engineering trained technical staff available to break all of this down into English so they can make sense of it.

No court has been particularly good at deciding technical issues - they don't have the right education for that, and are subject to bad advice from parties with a vested interest. That's why so many bogus or obvious technology and software patents get granted. I'm really afraid this will not improve any time soon. It's much too easy to confuse them and cause bad decisions to be made..

Re: Re:

Update:I have downloaded, printed, and read the patent application( US 2012/0127363 A1 of May 24, 2012 ). It includes diagrams and descriptions of how the system is supposed to operate.

Each channel consists of a tunable antenna, an RF tuner and receiver, and an MPEG2 decoder (I got that right, at least). This group is assigned to a customer as he logs in requesting service. The system is then tuned to the requested TV channel, the MPEG2 signal is transcoded into MPEG4 and stored as data.

From there it gets sent to the subscriber as an MP4 file that can be displayed in any internet browser. Neat system! It sure is complicated, though.

The point that sticks out is that the subscriber DOES NOT have an antenna/receiver system permanently assigned to him. Rather, when he logs in, the first available antenna system is assigned to him. He does have his own data storage block in their storage farm..

Re:

It is not just about how the cloud, in its current various forms, exists today. It is about how the cloud, or any new technology might exist in the future, too. There is no good reason for a new technology to get in the way of doing something that is perfectly legal otherwise.

funny

I find it all funny because it's not very hard to figure out where to draw the line between a rooftop antenna and a for profit service, and that is ownership and control.

You BUY a rooftop antenna, and you install it on YOUR roof, and you never pay anyone again for anything. It's yours, your own it, you control it, you can remove it, you can change it, you can paint it blue if you want. It's yours under your personal control.

Cable companies? They own the antennas, they own the cable (and often the set top box) and they control it. They own it, they can remove it, they can paint it blue if they want. It's their box, their service, and you pay them every month for it.

Aereo? Let's see - you don't own the antenna (they do), you don't own the equipment that streams the video to you (they do), and you rent the service from them on a monthly basis.

You don't have to squint hard to see that Aereo is pretty much everything that cable is, and almost nothing a rooftop antenna is.

Aereo is trying to skip around the law by using technology to turn a tail into a leg. But they can't stand on it, they are a month pay service to receive TV, just the same as cable. I don't think the judges will allow themselves to be scared off by the "cloud" boogieman here.

The problem is copyright law

Copyright law was intended to force works into the public domain. Before copyright, owners had complete control of the works forever. If you wanted a continuing income stream after copyright, you had to continue to produce new works.

Copyright has now been turned on its head. Works created before I was born can still be under copyright after I am dead. That is almost like having no copyright law at all!

I think copyright law should be 35 years for corporations, and not to exceed 70 years for individuals (and heirs).

Re: The problem is copyright law

Before copyright, owners had complete control of the works forever.

No, before copyright anybody could copy whatever they wanted and do anything they wanted with it. It was just hard for the average person to copy things (for example, a lot of them were illiterate), and really hard to copy them in large quantities.

Skirting the law

I have a problem with some terms being thrown about. The main one is 'getting around the law' or similar phrases. When you say this, are you saying they are obeying the law, but are not observing the intent of the law. Unfortunately the intent of the law is subjective (biased), so only the letter of the law should prevail until the law is changed.